T‑2202‑04
2006 FC 68
Leth Farms Ltd., Wheatland Select Organic Turkey Ltd. and Arnold Leth (Applicants)
v.
The Attorney General of Canada and Canadian Turkey Marketing Agency (Respondents)
Indexed as: Leth Farms Ltd. v. Canada (Attorney General) (F.C.)
Federal Court, Campbell J.—Vancouver, January 18 and 19; Toronto, January 24, 2006.
Agriculture — Application challenging National Farm Products Council’s (Council) dismissal of appeal under Farm Products Agencies Act (FPAA), s. 7(1)(f) from Canadian Turkey Marketing Agency’s (CTMA) decision applying Export Policy to applicants for 2003‑2004 period — Applicants prominent turkey producers based in Alberta — CTMA federal regulator of turkey marketed in interprovincial or export trade established under FPAA — Establishes amount of quota to be allocated to each participating province — Alberta Turkey Producers (ATP) overmarketing turkey in 2003‑2004, imposed penalties by CTMA — ATP attributed majority of overmarketing to applicants’ turkey operations — Whether Council correct in deciding not having jurisdiction to grant order applicants requested — FPAA, ss. 6, 7, setting out Council’s duties, powers — S. 7(1)(l) regarding Council’s powers to be read in context of s. 6 — Council having supervisory, facilitator duties, not intended to be enforcer — Narrow powers provided in FPAA, s. 7(1) also considered — Ss. 7(1)(a) to (e) giving Council power to inquire, review, report only over subject matter referred to (orders, regulations) — Ss. 7(1)(g) to (k) giving Council discretion to take administrative actions — In light of ss. 6, 7(1), Council not having directory authority under s. 7(1)(l) to make order requiring applicants’ export, domestic marketings be correctly calculated in accordance with actual production, marketing experience — Application dismissed.
Construction of Statutes — Application challenging National Farm Products Council’s (Council) dismissal of appeal under Farm Products Agencies Act (FPAA), s. 7(1)(f) from Canadian Turkey Marketing Agency’s (CTMA) application of Export Policy to applicants for 2003‑2004 period — When whole of FPAA, s. 7 considered, words in s. 7 regarding Council’s powers clear — Whether Council having directory authority under s. 7(1)(l) — “Limited class rule” (ejusdem generis) helpful in correctly interpretating s. 7(1)(l) — Rule providing that when general term follows clause setting out list of specific words, general term should be limited to genus of preceding narrow enumeration — FPAA very narrowly defining Council’s specific powers — By reading general powers granted in s. 7(1)(l) in context with supervisor, facilitator duties under s. 6, narrow powers provided in s. 7(1) to carry out duties according to “limited class rule”, discretionary power under s. 7(1)(l) not giving Council more than supervisory or facilitation powers — Therefore, Council not having directory authority.
This was an application in which the applicants challenged the National Farm Products Council’s (Council) dismissal of their appeal under paragraph 7(1)(f) of the Farm Products Agencies Act (FPAA) from the Canadian Turkey Marketing Agency’s (CTMA) decision applying its Export Policy to the applicants in the 2003‑2004 period. The applicants are prominent turkey producers based in Alberta. The CTMA was established under the FPAA and is the federal regulator of turkey marketed in interprovincial or export trade. It establishes the amount of turkey quota that is to be allocated to each participating province and has delegated the quota allotment to individual turkey producers to a provincial turkey commodity board in each participating province. The provincial regulator in Alberta is called the Alberta Turkey Producers (ATP). The CTMA developed an Export Policy in particular to facilitate the development of export markets. Under its policy, it issues each province a conditional allocation of quota for the turkey to be exported and the provincial commodity board then allots that conditional allocation to its producers accordingly. Regarding the application of the CTMA Export Policy in 2003‑2004 as it related to the applicants, for administrative reasons, it did not issue any export quota to the ATP. The non‑issuance of the export quota resulted in Alberta’s overmarketing position for that period and made it subject to monetary penalties. The ATP attributed the majority of that overmarketing to the applicants’ operation. In light of its non‑compliance with the Export Policy and the penalties imposed, the ATP requested special treatment from the CTMA, which agreed to reduce some of Alberta’s overmarketing penalties. The CTMA’s “forgiveness decision” resulted in deeming the majority of the production of Leth Turkey Farms as domestic production when in fact 91.8% of its production is exported and should be covered by export credits. Subsequent to the CTMA’s decision, the ATP imposed substantial penalties on the applicants and set their production quota for the following year to 0. The ATP sued the applicants in the Alberta Court of Queen’s Bench to recover the fine imposed. The applicants appealed the forgiveness decision to the Council, seeking to gain a policy review and to have the application of the CTMA Export Policy to them rectified by having their export and domestic marketings correctly calculated. Although the applicants’ appeal was accepted as a complaint under paragraph 7(1)(f) of the FPAA, the Council dismissed it on grounds that it did not have the jurisdiction to grant the relief the applicants sought. The issue was whether the Council was correct when it decided that it has no jurisdiction to grant the order the applicants requested and, in particular, whether its powers include directory authority under paragraph 7(1)(l) of the FPAA.
Held, the application should be dismissed.
The Council is established under Part I of the FPAA and is provided with duties and powers in sections 6 and 7. Paragraph 7(1)(f) provides that the Council shall “take such action within its powers as it deems appropriate”. The powers referred therein can only be those contained in subsection 7(1) since no other provision acts as a source of power. The words of section 7 are clear when the FPAA and section 7 are considered in their entirety. Paragraph 7(1)(l) should be read in the context of section 6. Paragraph 6(1)(a) of the FPAA provides that the primary duty of the Council is to advise the Minister on the establishment and operation of agencies; paragraph 6(1)(b) provides that the Council has the obligation to review the operations of the agencies so established; and paragraph 6(1)(c) states that the Council must “work with” agencies in promoting more effective marketing of farm products. Under subsection 6(2), the Council must “consult with” governments. Given the clear terms in section 6, the Council is intended to be not an enforcer but a supervisor and facilitator dedicated to productive change.
Furthermore, when the whole of section 7 is considered, the “limited class rule” (ejusdem generis) is helpful in reaching the correct interpretation of paragraph 7(1)(l). When a clause sets out a list of specific words followed by a general term, the general term should be limited to the genus of the narrow enumeration that precedes it. The specific grant of powers to the Council to carry out its duties is very narrowly defined. The powers paragraphs 7(1)(a) to (e) confers on the Council over the subject matter referred to are only to inquire, review and report. Under paragraphs 7(1)(d) and (e), the Council has the power to review, an obligation to approve and a discretion to set aside (paragraph (e) only) but only with respect to orders and regulations. Paragraphs 7(1)(g) to (k) provide the Council with a discretion to take certain administrative actions. Therefore, by reading the general grant of power in paragraph 7(1)(l) in context with the supervisor and facilitator duties established by section 6 and the narrow powers provided in subsection 7(1) to carry out these duties according to the “limited class rule”, the discretionary power under paragraph 7(l)(l) to do “all such other things as are incidental or conducive to the fulfilment of its duties” does not give the Council something more than supervisory or facilitation powers. In other words, the Council does not have directory authority to make an “order” to require that the applicants’ export and domestic marketings be correctly calculated in accordance with actual production and marketing experience as requested.
statutes and regulations judicially
considered
Farm Products Agencies Act, R.S.C., 1985, c. F‑4, ss. 1 (as am. by S.C. 1993, c. 3, s. 2), 6 (as am. idem, s. 6), 7 (as am. idem, s. 7).
Federal Courts Act, R.S.C., 1985, c. F‑7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18.1(3)(b) (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27).
Federal Courts Rules, SOR/98‑106, r. 1 (as am. by SOR/2004‑283, s. 2), Tariff B, Column III.
cases judicially considered
considered:
National Bank of Greece (Canada) v. Katsikonouris, [1990] 2 S.C.R. 1029; (1990), 74 D.L.R. (4th) 197; 50 C.C.L.I. 1; [1990] I.L.R. 1‑2663; 115 N.R. 42; 32 Q.A.C. 25.
authors cited
Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994.
APPLICATION in which the applicants challenged the National Farm Products Council’s dismissal of their appeal under paragraph 7(1)(f) of the Farm Products Agencies Act from the Canadian Turkey Marketing Agency’s decision applying its Export Policy to the applicants in the 2003‑2004 period. Application dismissed.
appearances:
Christopher Harvey, Q.C. for applicants.
M. Sean Gaudet for respondent The Attorney General of Canada.
John L. O’Kane for respondent The Canadian Turkey Marketing Agency.
solicitors of record:
MacKenzie Fujisawa LLP, Vancouver, for applicants.
Deputy Attorney General of Canada for respondent The Attorney General of Canada.
Lawrence, Lawrence, Stevenson LLP, Brampton, for respondent The Canadian Turkey Marketing Agency.
The following are the reasons for order and order rendered in English by
[1]Campbell J.: The applicants are prominent turkey producers based in Alberta. The impetus behind the present application is the applicants’ objection to Canada’s policy with respect to the export marketing of turkeys, and, in particular, the application of the policy to them during the time period of May 1, 2003 to April 31, 2004. With respect to the application of the policy during this period, the applicants applied for appeal relief within the marketing regime, and when this relief was rejected, commenced the present application challenging the rejection.
[2]An important element of the present application is a wide‑ranging request for declaratory relief to examine the marketing regime in hopes of prompting policy change. In the end result, the major effort which has gone into producing argument to effect this result has focussed down to a single question: what is the correct interpretation of paragraph 7(1)(l) [as am. by S.C. 1993, c. 3, s. 7] of the Farm Products Agencies Act, R.S.C., 1985, c. F‑4, s. 1 (as am. idem, s. 2) (the FPAA).
[3]For the reasons which follow, I do not accept the interpretation advanced by the applicants.
I. The legal and factual context with respect to the applicants’ policy objection
[4]Since the interpretation question at the centre of the present application arises as an element of the marketing dispute, it is important to understand the legal and factual context of the dispute. The following is an uncontested précis of the application to the applicants of the marketing regime found in the memorandum of fact and law of the Canadian Turkey Marketing Agency (CTMA), which I have abridged and amended slightly for clarity:
Canada has a supply management turkey marketing system based on complementary federal and provincial legislation enacted following a Federal‑Provincial Agreement (“FPA”) signed in 1973.
The CTMA is the federal regulator of turkey marketed in interprovincial or export trade that was established under the FPAA. The CTMA’s statutory objects, as established by the FPAA, are: to promote a strong, efficient and competitive production and marketing industry for turkey; and to have due regard to the interests of producers and consumers of turkey.
Just as the CTMA is the federal regulator, each province that signed the FPA has established a provincial commodity board as the provincial regulator. This comprehensive system utilizes interlocking federal and provincial regulations and inter‑delegation between provincial and federal regulators.
The CTMA regulates by Orders and Regulations made in accordance with its principle instrument, the Canadian Turkey Marketing Proclamation (the “Proclamation”).
The primary regulatory device employed by the CTMA is the Canadian Turkey Marketing Quota Regulation (“Quota Order”) whereby the CTMA establishes the amount of quota that is to be allocated to each participating province. In the case of Alberta, the CTMA allocated 11,399,016 kilograms (“kgs.”) (eviscerated weight) of turkey for 2003‑04.
The CTMA has delegated the allotment of quota to individual turkey producers to a provincial turkey commodity board in each participating province by the Canadian Turkey Marketing Agency Delegation of Quotas Order. In the case of Alberta, the provincial regulator, called the Alberta Turkey Producers (“ATP”), allotted the quota that was allocated by the CTMA, together with its own provincial quota for intraprovincial marketing, among the turkey producers in Alberta. In the case of the Applicants, ATP allotted 433,534 kgs. (live weight) of turkey production quota to them.
Schedule “C” to the FPA provides that any export markets developed by the agency and any new uses for turkey will be part of the existing quota sharing arrangements while any new export market opportunities developed by a province should not be part of the quota sharing arrangement but rather would be subject to a separate agreement between the province and the agency. Such export agreements between the province and agency are referred to as an “export policy”.
Accordingly, the CTMA developed an Export Policy in the mid‑1980’s. The Canadian Turkey Marketing Agency Export Policy (the “CTMA Export Policy”) has been amended from time to time, the purpose being to facilitate the development of export markets; to ensure that exports are recognized; to make sure that any product for export does not have a negative impact on the domestic market; and, to provide for the orderly marketing of all turkey.
The CTMA Export Policy requires participating provincial commodity boards to provide the CTMA with information about the anticipated export marketing of the producers within the province. Provided that the documentation submitted by the provincial commodity board is acceptable under the CTMA Export Policy, the province is then issued a “conditional allocation” of quota (eviscerated weight), for the turkey to be exported. The provincial commodity board then allots that conditional allocation of quota to its producers accordingly. For bone‑in or boneless exports (such as the Applicants’) a minimum of 59% of the total live weight of the turkey produced must be exported in order to qualify for quota under the CTMA Export Policy.
In respect of the application of the CTMA Export Policy in 2003/04 as it related to the Applicants, for a purely administrative reason concerning the filing requirements, the CTMA did not issue any export quota to the ATP. The net effect of the non‑issuance of the export quota was to place Alberta in an overmarketing position during the May 1, 2003 to April 30, 2004 period, thus making the ATP subject to monetary penalties.
Each year the CTMA conducts a reconciliation of all quota allocated to the provinces, during the previous year. The 196th meeting held on June 22 and 23, 2004 was the reconciliation meeting for the 2003‑04 period. Alberta had been allocated 11,399,016 kgs. of turkey quota for 2003‑04 and at the end of that period ATP reported to the CTMA that the province estimated that it was going to be in an overmarketing position of about 500,000 kgs. over its allocated turkey quota, and that it attributed the majority of that overmarketing to the Applicants’ operation.
The CTMA has no legislative authority to impose monetary overmarketing penalties on any individual turkey producer; the penalties are imposed under the terms of a “promotion agreement” between the CTMA and participating provincial commodity boards as a feature of the CTMA Export Policy. Accordingly, pursuant to the applicable agreement, the CTMA calculated Alberta’s overmarketing for 2003‑04 at 330,118 kgs. Thus, the penalty calculated against Alberta totalled $72,625.95 plus G.S.T. according to a penalty formula of $0.22/kg.
At the 196th meeting, CTMA staff submitted a report to the CTMA concerning a request from ATP dated June 7, 2004 requesting special treatment in respect of Alberta’s exports in 2003‑04 and the non‑compliance with the CTMA Export Policy. In response, the CTMA approved a motion which reads as follows:
It was MOVED by B. Cram and SECONDED by P. Ouellette to forgive overmarketing penalties for Alberta in an amount not to exceed 368,474 kg for the 2003/2004 control period, that is directly attributed to production marketed by Leth Farms in export trade subject to the Alberta Turkey Producers confirming the necessary measures that will be enacted to monitor compliance with the Export Policy for marketings by Leth Farms, effective immediately.
On July 6, 2004, as a result of the Applicants’ overmarketing in the 2003‑04 period, pursuant to Alberta regulations the ATP imposed penalties, including a fine of $462,174.07 and the setting of the Applicants’ production for 2004‑05 to “0”.
The ATP found it necessary to sue in the Alberta Court of Queen’s Bench to recover the fine imposed.
[5]Counsel for the Attorney General concisely states the applicants’ objection to the described course of events as follows (memorandum of fact and law of the Attorney General, at paragraphs 13-14):
The provisions of the CTMA’s export policy that the Applicants complain of in this proceeding are set out in section 1.2. They are as follows:
PRODUCTION FOR EXPORT MARKETS
1.2
Where production of young turkey is required over and above a province’s commercial turkey quota for the purposes of an export market, a conditional allocation may be issued by the Agency to the Provincial Commodity Board, in order to maintain domestic supply requirements. This provision is contingent upon the following terms and conditions:
. . .
1.2 b) For those eviscerated and boneless exports derived from authorized production under Section 1.2 the following minimum percentages of live weight produced must be exported:
. . .
(ii) For Bone‑in and/or Boneless Exports:
A minimum of 59.0% of the total live weight produced must be exported; and the export must be made up of both white and dark meat parts in the following proportion:
White 31—38% of live weight
Dark 21—29% of live weight
Because of the “organic nature” of their operations, Leth Farms and Wheatland maintain that they have lower production and meat conversion rates, or yield factor, than industry norms, i.e. more of the turkey is unmarketable offal and less is marketable turkey meat. Their average yield factor for the 2003/04 quota year was 55.68%. As a result, no conditional export quota would have been available to the ATP in respect of the Applicants’ operations because they did not meet the minimal threshold of 59.0% of the total live weight produced set out in section 1.2 of the CTMA’s export policy.
II. Action taken to address the applicants’ policy objection
[6]In order to gain a policy review and rectification of the application of the CTMA Export Policy to them in the 2003‑2004 period, the applicants launched an “appeal” to the National Farm Products Council (the Council) pursuant to paragraph 7(1)(f) of the FPAA with respect to the “forgiveness” decision of the CTMA as quoted above.
[7]The Council is established under Part 1 of the FPAA and is provided with duties and powers in sections 6 [as am. by S.C. 1993, c. 3, s. 6] and 7 [as am. idem, s. 7]. With respect to the present application paragraphs 6(1)(b), 7(1)(f) and (l) are important:
6. (1) The duties of the Council are
. . .
(b) to review the operations of agencies with a view to ensuring that they carry on their operations in accordance with their objects set out in section 21 or 41, as the case may be;
. . .
7. (1) In order to fulfil its duties, the Council
. . .
(f) shall make such inquiries and take such action within its powers as it deems appropriate in relation to any complaints received by it from any person who is directly affected by the operations of an agency and that relate to the operations of the agency;
[. . .]
(l) may do all such other things as are incidental or conducive to the fulfilment of its duties.
The Appendix to these reasons quotes the entirety of sections 6 and 7 of the FPAA for the purposes of the interpretation issue addressed below.
[8]The Council accepted the applicants’ “appeal” as a complaint under paragraph 7(1)(f) as being from persons “directly affected” by the forgiveness decision and, upon asking for clarity from counsel for the applicants, in a letter dated October 12, 2004, received the following submission (Tribunal record, at pages 9-10):
Decision Appealed From
CTMA Executive committee Decision made at the 196th CTMA meeting of June 22‑23, 2004 (as communicated in the July 7, 2004 memorandum from Phil Boyd of the CTMA to Greg Smith of the ATP).
The decision relates to the Appellant’s 2003/4 marketings.
The decision forgives overmarketing penalties for Alberta in an amount not to exceed 368,474 kg (eviscerated weight) attributed to the production of Leth Turkey Farms.
The result of the decision is that the majority of the production of Leth Turkey Farms has been deemed to be domestic production when in fact 91.8% of the production is exported and should, therefore, be covered by export credits. The result is an erroneous “deemed” domestic production (far in excess of Leth Turkey Farms domestic quota) which has been imposed on Leth Turkey Farms by joint action of the CTMA and the Alberta Turkey Producers (“ATP”) resulting in a fine of $462,174.07. The fine is of such magnitude that it will render Leth Turkey Farms insolvent.
Since the Leth Turkey Farm business is primarily an export business this is a matter of national interest and is governed largely by federal legislation. Thus we appeal to your Council.
Grounds
(a) The CTMA erred in its calculation of export marketings;
(b) . . .
(c) The consequence of the CTMA’s computation error is that production for the export market has been mischaracterized as production for the domestic market resulting in (i) excessive and erroneous levies, and (ii) penalties being imposed by the ATP in the erroneous assumption that export production is domestic production.
Order Sought
The Appellant requests an Order that its export and domestic marketings be correctly calculated in accordance with the actual production and marketing experience as summarized above and that export credits be issued accordingly and, in particular, that export credits be issued in a way that is not derived from or does not result in a fictitious allocation from export to domestic marketing. [Emphasis added.]
III. The Council’s decision
[9]By letter dated November 22, 2004, the Chairperson of the Council delivered the following decision (Tribunal record, at page 27):
The Council has determined that it cannot grant you the relief that you are seeking, as this is outside the jurisdiction of the Council. Further, we are aware that the matter is before the courts in Alberta.
For these reasons, the Council has decided that it is not prepared to take any further action on this matter at this time.
[10]It is agreed that the reasons for the decision are found in three sources: a passage from a briefing note sent to members of the Council prior to the decision under review being made entitled “Overview of Leth Farms Request for a Hearing”; the affidavit of Mr. Terrance Hayward, Executive Director of the Council, filed in this application; and the cross‑examination of Mr. Hayward on his affidavit. The passage of the briefing note reads as follows (Tribunal record, at page 19):
RELIEF BEING SOUGHT
The Appellant requests an Order that its export and domestic marketings be correctly calculated in accordance with the actual production and marketing experience as summarized in the (October 12, 2004) brief to the Council and that export credits be issued accordingly and, in particular, that export credits be issued in a way that is not derived from or does not result in a fictitious allocation from export to domestic marketing.
RECOMMENDATION
The Council cannot grant the relief sought by the complainant, as this is outside the jurisdiction of the Council. As the matter is now before the Courts in Alberta, the Council is not prepared to take any action on this matter at this time.
The passage from the affidavit reads as follows (Attorney General’s record, at page 6):
21. I have reviewed the affidavit filed by the Applicants’ in this proceeding. It would appear, from my review, that they are dissatisfied with the Export Policy developed by the CTMA and its application to their operations. A copy of the CTMA’s Export Policy is attached hereto as Exhibit “G”. The Council has no directory authority under the Act to amend or order an amendment to the CTMA’s Export Policy.
22. It also appears from the Applicants’ affidavit that they are complaining of a “domestic overmarketing penalty” for the 2003‑2004 control period in the amount of $462,174.07. This penalty was assessed by the Alberta Turkey Growers Marketing Board, over which the Council has no jurisdiction. [Emphasis added.]
The cross‑examination is as follows (applicants’ application record, at page 69):
Q The complaint was rejected on a jurisdiction ground rather than a procedural or timing ground; is that correct?
A The complaint was not rejected. The complaint was not continued within, other than the inquiry that was made by council in seeking information from Mr. Leth to determine what it was that the complainant wanted done, and that was taken into account by council when they considered did they have the authority to do what was asked.
Q And the council determined—I must have it somewhere— that it [sic] not did have the authority?
A To grant the order requested, correct.
Q And was that because the council viewed it as a complaint relating to the export policy of the CTMA rather than an order or a regulation of the CTMA?
A Council recognized it was not an order or regulation of the CTMA that was at question here. From the materials submitted by the complainant, council, in its review, determined that the action being complained about was actually the Alberta Turkey Producers action which was being complained about over which the council has no authority. [Emphasis added.]
[11]A point of argument during the course of the oral hearing was whether the Council members understood the exact nature of the complaint, given the inclusion of the mention in the Chairperson’s decision letter of the action to recover the ATP’s [Alberta Turkey Producers] fine against the applicants, then before the Court of Queen’s Bench, and the cross‑examination evidence respecting the fine and quota decisions imposed on the applicants by the ATP. I find that a fair reading of the evidence of the reasons for the decision shows that the Council knew very well about the content of the applicants’ complaint but found it had no directive authority whatever to resolve the subject matter of the applicants’ complaint. On this point, it is critically important to note that by counsel for the applicants’ letter of October 12, 2004, an “order” was requested; Council simply found that it had no authority to grant it.
IV. The issue for determination
[12]The relief claimed in the present application and the grounds upon which it is brought read as follows:
The Applicants make application for:
1. a writ of certiorari to quash the Decision of the National Farm Products Council (“NFPC”);
2. a declaration that the NFPC has the power and the duty to review the operations of the Canadian Turkey Marketing Agency (“CTMA”) with a view to ensuring that the CTMA carries on its operations in accordance with its objects set out in s. 21 of the Natural Products Agencies Act [sic];
3. a declaration that the NFPC has the power and the duty to make such inquiries and take such action in relation to the Applicants’ complaint made on or about July 14, 2004 (the “Complaint”) as is appropriate to ensure that the CTMA carries on its operations in accordance with its objects set out in s. 21 of the Act and, in particular, to ensure that the CTMA applies such formulae and procedures as are necessary to correctly calculate the level of the Applicants’ production for export marketing and for domestic marketing;
4. a declaration that it is part of the purpose and intent of the Farm Products Agencies Act, the Canadian Turkey Marketing Agency Proclamation, Canadian Turkey Marketing Quota Regulations, Canada Turkey Marketing Levies Order and the Federal‑Provincial Agreement in respect of the establishment of a Comprehensive Marketing Program for the purpose of regulating the marketing of Turkeys in Canada dated September 26, 1973, and any amendments thereto, that all turkey (including products derived therefrom) which is grown for marketing on the export market and which is not marketed on the Canadian domestic market shall be classified as “export” and, in particular, shall not be classified as “domestic”;
5. a writ of mandamus to require the NFPC to review the action of the CTMA in light of the purpose and intent of the aforementioned Act, Proclamation, Regulations and Federal‑Provincial Agreement and take whatever action is appropriate to ensure that the CTMA carries on its operations in accordance with its objects set out in s. 21 of the Act and in a manner consistent with the aforesaid legislation and Agreement so as to properly classify the Applicants’ export production as export production and issue export credits accordingly.
The grounds for the application are:
that the Decision was based on a misapprehension of jurisdiction and that the law pertaining to this matter, properly understood and applied, requires that the NFPC review the conduct of the CTMA and ensure that it is consistent with the CTMA’s statutory mandate.
However, at the opening of the oral hearing of the present application, given the very restricted declaratory power granted to this Court by paragraph 18.1(3)(b) [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27] of the Federal Courts Act [R.S.C., 1985, c. F-7, s. 1 (as am. idem, s. 14)], counsel for the applicants abandoned the application for declaratory relief. Therefore, the only issue outstanding for determination is whether the Council erred with respect to the powers granted to it under section 7 of the FPAA.
[13]As a result, I accept the applicants’ argument that a pragmatic and functional analysis establishes that the Council’s decision with respect to its own jurisdiction must be determined on the standard of correctness, and therefore the issue for determination is whether the Council was correct in deciding that it has no jurisdiction to grant the order requested by the applicants.
[14]Paragraph 7(1)(f) provides that the Council shall “take such action within its powers as it deems appropriate” [emphasis added]. I accept the Attorney General’s argument that the “powers” referred to in paragraph 7(1)(f) can only be those contained within subsection 7(1) since it has not been argued that there is any other provision which acts as a source of power. Indeed, during the course of the oral hearing, the question was reduced further to: does the grant of power to the Council in paragraph 7(1)(l) include directory authority?
[15]In support of this argument, counsel for the applicants argues that paragraph 7(1)(l) is remedial, and, therefore, it should be given such a wide interpretation as to provide the council with directory authority. However, Counsel for the Attorney General argues that, read in the context of the other elements of section 7, no such interpretation can be given to paragraph 7(1)(l). No extrinsic aids to interpretation have been offered by either the applicants or the respondents to assist in the interpretation of paragraph 7(1)(l). However, in my opinion, the words of the section are clear when the whole of the FPAA is considered, and, in particular, the whole of section 7.
[16]As the words of paragraph 7(1)(l) should be read in a contextual manner, they should be read in the context of section 6. Paragraph 6(1)(a) of the FPAA sets out the primary duty of the Council being “to advise” the Minister on the establishment and operation of agencies with the specific objective of maintaining and promoting an efficient and competitive agriculture industry. By paragraph 6(1)(b), once agencies are established, the Council has the obligation “to review” their operations “with a view to ensuring” that they carry out their operations according to specific legislated objectives. And by paragraph 6(1)(c), the Council is “to work with” agencies in promoting more effective marketing of farm products, and by subsection 6(2) to “consult with” governments.
[17]In my opinion, the terms of section 6 make it clear that the Council is not intended to be an enforcer, but is intended to be a supervisor and a facilitator dedicated to productive change.
[18]Further, when the whole of section 7 is considered, I find that the “limited class rule” (ejusdem generis) is helpful in reaching the correct interpretation of paragraph 7(1)(l) (see: Driedger on the Construction of Statutes, 3rd ed., at pages 203‑213). In National Bank of Greece (Canada) v. Katsikonouris, [1990] 2 S.C.R. 1029, at page 1040, Justice La Forest explained the limited class rule as follows:
Whatever the particular document one is construing, when one finds a clause that sets out a list of specific words followed by a general term, it will normally be appropriate to limit the general term to the genus of the narrow enumeration that precedes it.
[19]The specific grant of powers to the Council to carry out its duties is very narrowly defined. With respect to powers given to the Council as specified in paragraphs 7(1)(a) to (e), the power over the subject matter mentioned is only to inquire, review and report. With respect to both paragraphs 7(1)(d) and (e), the Council does have a power to review and an obligation to approve, and in paragraph (e) a discretion to set aside, but with respect to only two categories of subject matter: orders and regulations. Paragraphs 7(1)(g) to (k) provide the Council with a discretion to take certain administrative actions.
[20]Therefore, by reading the general grant of power in paragraph 7(1)(l) in context with the supervisor and facilitator duties established by section 6 and the narrow powers provided in subsection 7(1) to carry out these duties according to the “limited class rule”, in my opinion, the discretionary power to do “all such other things as are incidental or conducive to the fulfilment of its duties” [underlining added] most certainly does not give something more than supervisory or facilitation powers; that is, it does not give directory authority to the Council to make an “order” to require the applicants’ export and domestic marketings be correctly calculated in accordance with actual production and marketing experience as requested in the October 12, 2004 letter quoted above.
[21]Therefore, I find the answer to the question posed in this section is “no”; the grant of power to the Council in paragraph 7(1)(l) does not include directory authority.
ORDER
For the reasons provided, this application is dismissed.
With respect to costs, I find that the just result is to require the applicants to pay only the costs of the Attorney General, and, accordingly, I award costs to the Attorney General against the applicants in Tariff B, Column III [Federal Courts Rules, SOR/98-106, r. 1 (as am. by SOR/2004-283, s. 2)].
Appendix
Sections 6 and 7 of the Farm Products Agencies Act, R.S.C., 1985, c. F‑4 read as follows:
6. (1) The duties of the Council are
(a) to advise the Minister on all matters relating to the establishment and operation of agencies under this Act with a view to maintaining and promoting an efficient and competitive agriculture industry;
(b) to review the operations of agencies with a view to ensuring that they carry on their operations in accordance with their objects set out in section 21 or 41, as the case may be; and
(c) to work with agencies in promoting more effective marketing of farm products in interprovincial and export trade and, in the case of a promotion‑research agency, in promoting such marketing in import trade and in connection with research and promotion activities relating to farm products.
(2) In carrying out its duties, the Council shall consult, on a continuing basis, with the governments of all provinces having an interest in the establishment or the exercise of the powers of any one or more agencies under this Act or with any body or bodies established by the government of any province to exercise powers similar to those of the Council in relation to intraprovincial trade in farm products.
7. (1) In order to fulfil its duties, the Council
(a) on receipt of a written request from one or more associations representing a significant number of persons engaged in the growing or production of any farm product in Canada or if directed to do so by the Minister shall, or on its own initiative may, inquire into the merits of
(i) establishing an agency in respect of the farm product and vesting it with all or any of the powers set out in section 22 or 42, as the case may be, or
(ii) broadening the authority of an existing agency by vesting it with all or any of the powers set out in section 22 or 42, as the case may be, in relation to any farm products that are additional to the farm products in respect of which it was established,
and report its recommendations to the Minister, including the terms of an appropriate marketing plan or promotion and research plan where, in its opinion, it is appropriate that an agency be vested with power to implement such a plan in relation to the farm products to which the inquiry relates;
(b) shall review any amendment to a marketing plan or promotion and research plan that is submitted to it by the agency charged with the implementation of the plan, review any proposed marketing plan or promotion and research plan that is submitted to it by an agency that is not vested with power to implement such a plan, and consider all representations submitted to it in relation to the proposed amendment or plan and report its recommenda-tions thereon to the Minister;
(c) shall review the operations of agencies and report thereon annually to the Minister or, in any case where in its opinion the circumstances warrant, on a more frequent basis;
(d) shall review all orders and regulations that are proposed to be made by agencies and that are of a class of orders or regulations to which the Council, by order, provides that this paragraph is applicable and, where it is satisfied that the orders and regulations are necessary for the implementation of the marketing plan or promotion and research plan that the agency proposing to make the orders or regulations is authorized to implement, the Council shall approve the orders and regulations;
(e) shall review all orders and regulations that are made by agencies and that are not of a class of orders or regulations to which paragraph (d) is made applicable, and, where it is satisfied that the orders or regulations are necessary for the administration of the marketing plan or promotion and research plan that the agency that has made the orders or regulations is authorized to implement, the Council shall approve the orders or regulations and, where it is not so satisfied, the Council may, by order, set aside in whole or in part any such orders and regulations;
(f) shall make such inquiries and take such action within its powers as it deems appropriate in relation to any complaints received by it from any person who is directly affected by the operations of an agency and that relate to the operations of the agency;
(g) may conduct studies of, and on its own initiative or on the direction of the Minister research into, any matter relating to the marketing or promotion of a farm product in interprovincial or export trade or research activities related thereto;
(h) may, for the purpose of implementing any marketing plan, require persons engaged in the production of a farm product for, or the marketing of a farm product in, interprovincial or export trade
(i) to register with the Council or the appropriate agency,
(ii) to maintain books and records in relation to the production or marketing of the farm product by them in such form and containing such information as the Council requires pursuant to this paragraph, and
(iii) to submit to the Council or the appropriate agency such information relating to the production or marketing of the farm product by them as it may reasonably require;
(i) may, when in its opinion it is necessary to do so for the purpose of determining the advisability of establishing an agency in respect of a farm product or of vesting an agency with power to implement a marketing plan, require persons engaged in the production of a farm product for, or the marketing of a farm product in, interprovincial or export trade to submit to the Council or the appropriate agency such information relating to the production or marketing of the farm product by them as it may reasonably require;
(j) may, for the purpose of implementing any promotion and research plan, require persons who are engaged in the production or importation of a farm product for, or the marketing of a farm product in, interprovincial, export or import trade
(i) to register with the Council or the appropriate agency,
(ii) to maintain books and records in relation to the production, marketing or importation of the farm product by them in such form and containing such information as the Council requires pursuant to this paragraph, and
(iii) to submit to the Council or the appropriate agency such information relating to the production, marketing or importation of the farm product by them as it may reasonably require;
(k) may, when in its opinion it is necessary to do so for the purpose of determining the advisability of establishing an agency in respect of a farm product or of vesting an agency with power to implement a promotion and research plan, require persons who are engaged in the production or importation of a farm product for, or the marketing of a farm product in, interprovincial, export or import trade to submit to the Council or the appropriate agency such information relating to the production, marketing or importation of the farm product by them as it may reasonably require; and
(l) may do all such other things as are incidental or conducive to the fulfilment of its duties.
(2) The Council, in reporting to the Minister under subsection (1), shall not recommend the establishment of an agency in respect of one or more farm products or the broadening of the authority of an existing agency by vesting it with powers in relation to one or more farm products unless it is satisfied that
(a) in the case of a marketing agency, the majority of the producers of each of those farm products, in Canada or in the region of Canada to which the recommendation relates, is in favour of that action; or
(b) in the case of a promotion‑research agency, the majority of the aggregate of the producers or, where the import trade in one or more farm products is to be included, the majority of the aggregate of the producers and importers, of all those farm products, in Canada or in the region of Canada to which the recommendation relates, is in favour of that action.